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Monday, April 21, 2008

Bopp's Back With One Of Your Judges

Indiana Right to Life attorney Jim Bopp has found two Indiana judicial candidates willing to pursue his political agenda for him in federal court to compel Indiana judicial candidates to declare their position on hot button social issues like abortion and gay marriage so that the religious right can use these polarizing issues in judicial elections just like they do in legislative and executive branch races. Marion Co. Superior Court Judge David Certo, who was appointed last year to the bench by Gov. Mitch Daniels to take Judge Cale Bradford's position after he was appointed to the Court of Appeals, has joined Kosciusko County Superior Court judicial candidate Torrey Bauer in filing a lawsuit to overturn Indiana's judicial canons which prohibit judicial candidates from making "pledges or promises" or making statements that "commit or appear to commit" the candidates on cases, issues or controversies likely to come before the court. Bopp put out a press release last week about his latest lawsuit:

Two Indiana judicial candidates filed suit today in federal court to block enforcement of Indiana rules prohibiting them from responding to a survey asking their views on abortion, euthanasia, and other issues. Judge David Certo, a Superior Court Judge in Marion County, and Torrey Bauer, a candidate for Superior Court Judge in Kosciusko County are joined in the suit by Indiana Right to Life Committee, a non-profit organization.

The case arises out of a survey Indiana Right to Life sent to candidates for judicial office in the May 2008 election, requesting that they state their views on policies and court decisions related to abortion, euthanasia, and other related issues . Several of the judicial candidates refused to do so, especially in view of a Preliminary Advisory Opinion issue by the Commission on Judicial Qualifications that warned that judicial candidates who make “broad statements on disputed social and legal issues” run the risk of violating the Indiana Code of Judicial Conduct.

Indiana Right to Life had previously challenged these Indiana rules during the 2004 election. But while a federal district court initially found the Canons in question unconstitutional, the case was ultimately dismissed on the grounds that Indiana Right to Life had not shown there were any judicial candidates who wanted to answer its questions.

That’s not a problem this time, as two of Indiana Right to Life’s co-plaintiffs are candidates for judicial election in 2008.

The 7th Circuit Court of Appeals last year threw out a similar lawsuit brought by Bopp's Right to Life group because there were no judicial candidates who were a party to the case who had faced disciplinary action or feared violating the code of judicial conduct if they answered Right to Life's questionnaire. Bopp has now found two judges, including the unelected Certo, to advance his frightening ideological agenda. Now you know. Judge Certo has just allied himself squarely behind Jim Bopp's Indiana Right to Life organization, which wants to overturn Roe v. Wade. Bopp and his organization also want to relegate all gays and lesbians to second-class citizen status. Bopp has been the leading legal scholar in Indiana pushing the badly-flawed and mean-spirited SJR-7 amendment being pushed by the religious right. Regardless of whether you agree or disagree with Judge Certo's positions or his belief that judges should be allowed to announce in advance how they will decide cases and controversies which come before his court on these hot button issues, you won't have a chance to vote either way this year even though he's on the election ballot. That's because both political parties brokered backroom deals to select each party's judicial candidates for the November ballot. You will have no choices in the May 6 primary. You will have no choices in November. Are we living in the Unites States of America or the Islamic Republic of Iran?

It is bad enough that these wedge issues are trotted out every election to divide us in legislative and executive branch races, but if Bopp and his followers get their way, judges will be no different than those elected from the political branches of government. No more will we have an independent judiciary. What confidence can a party to a lawsuit have that his or her case will be decided fairly if the judge has already declared how he or she will decide a case in advance? This nonsense has completely convinced me that we have to end the practice of electing judges altogether. A merit selection system will have to do.

UPDATE: The Indiana Law Blog has posted documents pertaining to the lawsuit. According to the Complaint, Judge Bauer completed the questionnaire and now fears he will be found to have violated the judicial canons. The Complaint says Judge Bauer was unaware the Indiana Right to Life decision had been reversed by the 7th Circuit Court of Appeals last year before he completed and returned the questionnaire. Judge Certo states that he wanted to respond to the questionnaire but believes doing so would violate the Indiana judicial canons. You can view the questions Indiana Right to Life elicited from judicial candidates here. The Complaint indicates that 10 candidates completed the questionnaire, while another 21 candidates declined to answer some or all of the questions.

Here's a sample of some of the questions being asked:

"I believe that Roe v. Wade was wrongly decided""I believe that abortion should be permitted only to prevent the death of the mother""I believe that Humphreys v. Clinic for Womenwas wrongly decided" (decision said Medicaid must pay for abortion where mother's pregnancy poses serious risk of harm to her health)"I believe that there is no provision of the current Indiana Constitution which is intended to protect a right to assisted suicide""I believe that Bader v. Johnson was wrongly decided (defined a "wrongful birth" case to be treated like other medical malpractice cases)

Bopp is correct that the judicial restriction is hard to square against the Free Speech Clause. That doesn't bother me so much as the Disciplinary Commission going after attorneys who criticize judges publicly. Remember the "Mickey Mouse" case out of Warrent Township.

The lack of respect our Supreme Court and the Disciplinary Commission has for attorney free speech is appalling. If Bopp's case indirectly helps inform the Supreme Court that the 1st Amendment does apply to attorneys too, that's a good thing.

If you're a judge and you can't handle criticism, you need to get off the bench.

As a side note, I would say that Certo (a complete lack of experience) and Bradford (not a very good trial judge with some whacky rulings) were two of the stranger Daniels' appointments.

Sir Hailstorm, I have to agree. The so-called merit system is just politics behind closed doors, the worst kind of politics. Why is it the Governor always gets his pick on the list of finialists? It's becuase it's not trule a merit system. Never was. Remember Bayh getting his private attorney on the Supreme Court, someone who had zero judicial experience?

The feds actually do it a lot better than Indiana and the other Missouri Plan states.

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